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TMI Blog2018 (10) TMI 469X X X X Extracts X X X X X X X X Extracts X X X X ..... STAT CHENNAI], where it was held that The second proviso to section 35A of the Act requires, inter alia, that where Commissioner (Appeals) is of the opinion that any amount has been erroneously refunded, appellant should be given notice within the time limit specified in Section 11A of the Central Excise Act. Refund allowed - appeal allowed - decided in favor of appellant. - E/30496/2018 - A/31251/2018 - Dated:- 5-10-2018 - Mr. P.K. Choudhary, Member (Judicial) For the Appellant : Shri J. Shankar Raman, Advocate For the Respondent : Shri Dass Thavanam, Superintendent /AR ORDER PER: MR. P.K. CHOUDHARY] 1. The facts of the case in brief are that the appellant herein is engaged in the manufacture of sugar, Mola ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a well settled legal position that there must be a show cause notice under section 11A of Central Excise Act, 1944 for recovery of erroneous refund at the time of filing an appeal before the Commissioner (Appeals), Vijayawada after review under section 35(E) of Central Excise Act, 1944. In support of his submission, Ld. Advocate referred to Board s Circular No. 423/56/98-CX, dated 22.09.1998 and also relied upon the following decisions: a) CCE, Coimbatore vs. Pricol Ltd. [2015(320)ELT 703 (Mad.)] b) Nestle India Ltd. vs. CCE, Goa [2009(240)ELT 426 (Tri.-Mumbai] c) Golden Plast Rigid PVC Pipes vs. CCE, Trichy [2018(13)GSTL 321 (Tri.-Chennai)] 2. Ld. DR reiterates the findings of the Commissioner (Appeals) and also files a statem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment and the short-payment of duty pointed out, the appellant had paid up an amount of ₹ 3,82,431/- in the formal proceedings issued for recovery and appropriation of this amount by a show cause notice. The adjudicating authority dropped the proceedings. In consequence, the appellant filed refund claim seeking refund of the amount paid by them at the investigation stage. In the order dated 14-3-2007, the adjudicating authority found that while the refund claim has been filed beyond the stipulated period of one year, however as the entire amount was paid under protest, their claim is not hit by limitation. The adjudicating authority held that the refund claim is eligible for sanction on merits and sanctioned the amount of ₹ 3,82, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that case the Court was dealing with Section 28 of the Customs Act which is in pari materia with Section 11A of the Central Excise Act. The said decision is thus applicable to the present case also. For the reasons given in the said judgment, the appeal is dismissed . In this context the point to be stressed is that the Order passed u/s 35E(2) does not automatically result in the recovery of the refund. This has to be followed by SCN u/s 11A which should be issued within 6 months from the date of actual refund. Since time-limit for filling appeal u/s 35E(2) is longer than the time-limit prescribed u/s 11A, the SCN, the SCN should precede the proceedings u/s 35E(2). This view has been supported by the opinion of the Law Ministry. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evied or short-paid or erroneously refunded. - (1) When any duty of Excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, whether or not such nonlevy or non-payment, short-levy or short payment or erroneous refund, as the case may be, was on the basis of any approval, acceptance or assessment relating to the rate of duty on or valuation of excisable goods under any other provisions of this Act or the rules made thereunder, a Central Excise Officer may, within one year from the relevant date, serve notice on the person chargeable with the duty which has not been levied or paid or which has been short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause ..... X X X X Extracts X X X X X X X X Extracts X X X X
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